Tweet Share Share Comment Does the First Amendment protect anti-gay bigots’ ability to serve on a jury in cases involving the rights of gay people? Justice Samuel Alito argued that it does in an opinion on Tuesday that marks yet another effort to undermine and eventually overturn the constitutional guarantee of marriage equality.
Alito’s opinion in Missouri Department of Corrections v. Finney protested the Supreme Court’s refusal to take up an appeal involving homophobic bias in an LGBTQ+ civil rights dispute. Jean Finney, the plaintiff, alleged that her employer, the Missouri Department of Corrections, violated state law by discriminating against her because she is a lesbian. At trial, her attorney asked potential jurors: “How many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did?” A number of people raised their hands.
Finney’s lawyer then asked how many potential jurors could not set those views aside. Just a few raised their hands, and the attorney asked them to elaborate. One, a pastor’s wife, described jury service as a “civic duty,” but added: “I firmly stand on the word of God and what the word of God says … Yes, homosexuality, according to the Bible, is a sin.” Another volunteered that “according to my belief, homosexuality is a sin,” as dictated by “the Bible.” But, he said, “you still have to love those people, and you still have to treat them right in society.” He then insisted: “You don’t have the right to judge them. Therefore, I think I could be a fair juror.” A third potential juror expressed substantially similar beliefs.
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Finney’s lawyer moved to strike all three individuals for cause, arguing that their anti-gay bias prevented them from rendering impartial judgment. The judge agreed, striking all three potential jurors in question. The jury returned a verdict in favor of Finney and awarded her $275,000 in damages. A state appeals court upheld the strikes. Missouri appealed to the U.S. Supreme Court, arguing that the strikes unconstitutionally discriminated against the would-be jurors on the basis of religion. Its appeal was supported by the attorneys general of Virginia and 12 other states.
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Read More The Supreme Court refused to take up the case on Tuesday with no noted dissents. Even Alito could not actually dissent, because, as he acknowledged, the defense attorney failed to preserve an objection to the strikes, dooming the appeal. So, instead, Alito wrote an angry “statement” claiming that the case “exemplifies the danger that I anticipated in Obergefell v. Hodges”—specifically, that “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.” Obergefell, the justice asserted, “made it clear that the decision should not be used in that way, but I am afraid that this admonition is not being heeded by our society.”
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When a court holds that a person “is ineligible to serve on a jury because of his or her religious beliefs,” Alito went on, “that decision implicates fundamental rights” protecting both equal protection and free exercise of religion under the First Amendment. The Missouri appeals court concluded that the strikes in dispute did not run afoul of free exercise because they focused on religious beliefs, not religious “status” or “affiliation.” In other words, the potential jurors were struck for holding specific prejudices against gay people, not because they identified as Christian. Many other courts have drawn a similar line between religious belief and religious status. Yet Alito dismissed this distinction as meaningless. The court, he wrote, still agreed to “single out the religious for disfavored treatment.” And that is generally forbidden “regardless of whether the differential treatment is predicated on religious status or religious belief.”
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Alito is correct that this case involves a clash between contemporary, court-invented privileges and actual “fundamental rights” rooted in the Constitution. But he mixed up which is which. The errant precedent here is not Obergefell, which was simply the latest in a long line of cases protecting the rights of marriage and family. Rather, the mistake lies in 2017’s Trinity Lutheran v. Comer and its progeny, which bulldozed establishment clause principles that kept religious doctrine out of state affairs. These decisions declared, for the first time ever, that preventing the infusion of religious beliefs into law—even by merely avoiding public funding of religion-based discrimination—was, in fact, unconstitutional. Alito now seeks to extend this theory to jury trials by prohibiting the removal of jurors whose bias is dressed in the cloak of faith. He would, in essence, grant special rights to people whose faith dictates bigotry, allowing them to sit in judgment of a person whose very identity they view as sinful. This newfound privilege would apparently extend to both civil and criminal trials, where the defendant has an indisputable Sixth Amendment right to an impartial jury.
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The justice’s sudden concern with the striking of a juror due to bias is especially jarring in light of his persistent cold shoulder toward those who faced openly racist juries. In theory, the equal protection clause bars racism in jury selection. In practice, this Supreme Court regularly declines to enforce this guarantee—most often, when a Black defendant faces the death penalty—with Alito’s assent.
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This hypocrisy should provide yet another hint that the justice’s opinion on Tuesday was not rooted in some profound desire to ensure fairness and equality in jury selection. In truth, his real target was obvious: Obergefell itself and the right of marriage equality. Less than four years ago, Alito joined an opinion by Justice Clarence Thomas suggesting that the Supreme Court had to overturn marriage equality to protect religious freedom. The court, the two justices lamented, had “created a problem that only it can fix.” As Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer pointed out in their Dobbs dissent, Alito and Thomas “hardly seemed content to let the matter rest.” Instead, they evinced an obvious desire to ax Obergefell—and Thomas himself now openly calls for the decision to be reversed as soon as possible.
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The current Supreme Court already goes far out of its way to impose a First Amendment right to discriminate against gay people. It’s not enough for Alito or Thomas, who crave (with varying degrees of subtlety) the abolition of marriage equality as a fundamental right. Can they pick up three more votes? Perhaps not right now, but we’ve seen how constitutional protections can be undone with a shift in court personnel. And in the meantime, both will twist the rules however they can to aggrandize the rights of homophobes at the expense of LGBTQ+ people who ask for nothing more than equal justice.
Tweet Share Share Comment - Jurisprudence
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Sam Alito Launches Broadside Against Marriage Equality in Homophobic Juror Case
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21.02.2024
Tweet Share Share Comment Does the First Amendment protect anti-gay bigots’ ability to serve on a jury in cases involving the rights of gay people? Justice Samuel Alito argued that it does in an opinion on Tuesday that marks yet another effort to undermine and eventually overturn the constitutional guarantee of marriage equality.
Alito’s opinion in Missouri Department of Corrections v. Finney protested the Supreme Court’s refusal to take up an appeal involving homophobic bias in an LGBTQ civil rights dispute. Jean Finney, the plaintiff, alleged that her employer, the Missouri Department of Corrections, violated state law by discriminating against her because she is a lesbian. At trial, her attorney asked potential jurors: “How many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did?” A number of people raised their hands.
Finney’s lawyer then asked how many potential jurors could not set those views aside. Just a few raised their hands, and the attorney asked them to elaborate. One, a pastor’s wife, described jury service as a “civic duty,” but added: “I firmly stand on the word of God and what the word of God says … Yes, homosexuality, according to the Bible, is a sin.” Another volunteered that “according to my belief, homosexuality is a sin,” as dictated by “the Bible.” But, he said, “you still have to love those people, and you still have to treat them right in society.” He then insisted: “You don’t have the right to judge them. Therefore, I think I could be a fair juror.” A third potential juror expressed substantially similar beliefs.
Advertisement Advertisement Advertisement Advertisement Finney’s lawyer moved to strike all three individuals for cause, arguing that their anti-gay bias prevented them from rendering impartial judgment. The judge agreed, striking all three potential jurors in question. The jury returned a verdict in favor of Finney........
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